Public Legal Educationand Information Serviceof New Brunswick

R I G H T S A N D R E S P O N S I B I L I T I E S

When Couples Separate

Public Legal Education and Information Service of New Brunswick(PLEIS-NB) is a non-profit organization. Its goal is to provide NewBrunswickers with information on the law. PLEIS-NB receives fundingand in-kind support from the Department of Justice Canada, the NewBrunswick Law Foundation and the New Brunswick Office of theAttorney General.

This booklet answers some of the common questions that couples askwhen they are thinking of separating or have separated from theirspouse or partner. Whether you are married or living common-law, youwill find information on your rights and responsibilities on matters suchas division of property, custody and access, and support. This bookletreviews options and resources available to separating couples.

Funding to create this booklet was provided by Justice Canada. Thisbooklet does not contain a complete statement of the law in the areaand changes in the law may occur from time to time. Anyone needingspecific advice on his or her own legal position should consult a lawyer.

ISBN 978-1-55471-730-9 Revised February 2016

P.O. Box 6000Fredericton, NB E3B 5H1Telephone: (506) 453-5369Fax: (506) 462-5193Email: pleisnb@web.caFamily Law Information Line: (888) 236-2444www.legal-info-legale.nb.cawww.familylawnb.ca

Published by:

Public Legal Educationand Information Serviceof New Brunswick

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Understanding Separation

What does separation mean?

Separation means that one person has left a relationship or a marriage withthe intention of ending the relationship.

Do we have to live in different

homes to be considered

“separated”?

No, it is possible for people to live inthe same house or apartment and yetlive separately if each person leadsan independent life. You must nolonger perform any functionsnormally expected of a married

couple such as eating and socializingtogether. This includes having separate bedrooms and not

having sexual relations.

Do we both have to agree to the separation?

Both people do not have to agree to the separation. When one person leavesa relationship with the intention of ending the relationship, the couple isthen separated, whether the other person wants to be separated or not.

How do I get a “legal separation”?

As soon as you are no longer living together, you are considered separated.You need not take any further action to make it “legal”. Many people thinkthey must get a court order to be “legally” separated. This is not the case.The law does not require you to have an agreement or a court order to belegally separated. Eventually you will need to work out family law matterssuch as child custody and access (if you have children), child and spousalsupport, division of property and rights to pensions. This usually means youwill need a written agreement or court order for these family law matters. Ifyou were legally married and want to end all your rights and obligations as amarried person, you will have to apply to the court for a divorce to do this.

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Legal Rights and Responsibilities After Separation

When couples separate they usually have to deal with some or all ofthe following family law issues:

Custody And Access

Custody means having the care and control of a child. During arelationship, children are in the custody of both parents unless thereis a court order or written agreement otherwise. When a coupleseparates, the parents need to decide on arrangements for the care ofthe children. The parents may agree in a separation agreement or aconsent order that the custody, care and physical control of thechildren will be the responsibility of one parent, or be shared by bothparents. A parent who does not have custody of the child wouldgenerally have the right to reasonable access to the child. If parentscannot agree, either of them can apply to the court for an ordersetting out custody and/or access.

There is no waiting period to apply for custody. A court can grant acustody order at any time after a separation. The court must consideronly the best interests of the child. The court will not consider pastconduct, including abuse, unless the conduct is relevant to theperson’s ability to act as a parent. The court must give a child asmuch contact as possible with both parents if the contact is in thechild’s bestinterests. Thecourt mustconsider whethera parent whowants custody iswilling toencouragecontact with theother parent forthe child’sbenefit.

Although a separation is a breakdownof the relationship between twospouses, it does not end their

relationship with their children.Parents’ responsibilities totheir children continue. In

any court matter dealingwith children, the courttries to protect thechildren. In law, the“best interests of thechild” and the rights ofthe children alwayscome first.

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Child Support

Both parents have an obligation to support their children financially,according to each parent’s income. When parents separate, the parent withcustody usually receives child support payments from the other parent forthe children’s financial needs. Child support amounts are determinedaccording to the Federal Child Support Guidelines, which have tables foreach province and territory in Canada. You should use the table for theprovince in which the paying parent lives.

Calculating child support: Generally, the amount of child support paid isbased on the paying parent’s annual income and the number of childrenentitled to support. As a rule, you can tell what amount a court wouldpossibly order based on the Child Support Guidelines. You can look up thebasic amount of support in the table for the province where the payingspouse lives. The parents can agree on the amount of child support from thetable plus each parent’s share of special expenses. Special expenses mayinclude costs for daycare, extracurricular activities, medical expenses,schooling, etc. They can also agree on some other amount if the court findsit is reasonable having regard to the Child Support Guidelines. If theparents cannot agree, the court will decide the amount of child support, byapplying the Guidelines. If circumstances change, either of you can ask thecourt for a “variation” to change the amount of support.

When child support ends: Child support usually continues as long as the childis a dependant. This can be until the child reaches the age of majority onhis/her 19th birthday. A judge may also order that child support continue fora longer period if necessary, for example, if the child is attending university orhas a disability that prevents him or her from being self-supporting.

You can get a copy of the Federal ChildSupport Guidelines: Step by Step fromPLEIS-NB. Call 1-888-236-2444 or checkonline at www.familylawnb.ca.

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Spousal Support

Spousal support is money that is paid by one spouse to the other spouseafter the relationship has ended. It is sometimes called alimony ormaintenance. Spouses are not automatically entitled to receive spousalsupport. To decide if you should get spousal support, a judge will look atseveral factors including:

� Length of the relationship� Age of both parties� Education of both parties� Income levels of both parties� Net worth of both parties� Employment history of both parties� Financial consequences of separation � Was one person financially dependent on the

other during the relationship

Calculating spousal support: Justice Canada has released a set ofguidelines entitled the Spousal Support Advisory Guidelines (SSAG). Theyare intended to simplify the process of calculating spousal supportamounts. They were developed to assist lawyers, judges and individualswanting to estimate spousal support. They include formulas for estimatingspousal support – the formulas involve calculations that take into accountdifferent factors, including whether there are children of the marriage,both parties’ income, the length of the relationship, etc. There are no“tables” for you to use to calculate spousal support.

The SSAG are used in an advisory capacity ONLY. This means that unlikethe Child Support guidelines, they are not mandatory. You should consult alawyer to find out whether you might be entitled to spousal support and toestimate the amount of support.

When spousal support ends: The court can grant spousal support for aindefinite period or a definite period (i.e. for a period of two years). Thejudge will decide based on a number of characteristics such as how long itmight take the dependent spouse to become self-supporting, get a betterjob or secure his or her financial safety.

Common-law relationships and spousal support: Under the Family ServicesAct, if you have been living in a family situation with another person forthree years, or for one year if you had a child together during that time,

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you may be entitled to support as a dependent. A judge will decide aboutspousal support by considering the same factors used when marriedcouples divorce (i.e. how long you lived together, how dependent you areon your partner, your income, etc.). However, an ex-common-law partnermust make the application for support within one year of separation.

Enforcing Support

New Brunswick’s enforcement system is called the Family Support OrdersService (FSOS). This service files and enforces court ordered supportawards. It also enforces support agreements or pre-existing orders oragreements filed with the court for enforcement. Support payers makesupport payments to the court. FSOS then sends a cheque by mail to theperson receiving support. When a payment is not made, FSOS immediatelymakes every effort to enforce the order.

Division of Property and Debts

Under the Marital Property Act, when married spouses separate or divorce,each spouse is entitled to an equal share of the marital property, and eachspouse is responsible for an equal share of the marital debts, except incertain special circumstances.

The most common types of marital property are the marital home,household goods, money, personal investments, automobiles andrecreational vehicles. Marital debts can include financial obligations thatwere incurred by either spouse during the marriage, including debts likemortgages, car loans, credit card bills, lines of credit, etc.

You can divide your marital property after separation. If you cannot agree,you can apply to the court for a division of your marital property. You donot need to be divorced to divide your property. If you are legally marriedand you wait until after you get divorced, you only have 60 days to applyfor a division of marital property from the date that your divorce takeseffect. In exceptional situations, you can ask the court to give you moretime to apply.

Common-law relationships and property rights: Unlike a married couple,if you are leaving a common-law relationship, you do not have an automaticright to a share of the property. Generally, any property that you broughtinto a common-law relationship, or that you bought during therelationship, is your own. If you separate, the person who paid for the itemor whose name is on the deed may be the only one entitled to it. If you felt

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you should get more, you would have to apply to the court and ask for adivision of the property because you contributed to it. Generally, common-law couples are not responsible for the debts of their partner unless youhave co-signed for them or you have signed a contract agreeing to pay forthem. In some cases, however, courts have held partners responsible for aportion of a debt incurred by a former partner when both partners benefitedfrom the debt, or from the asset purchased by way of the debt.

Pensions

Am I entitled to part of my spouse’s/partner’s Canada Pension Plan ifwe separate?Regardless of whether you were married or in a common-law relationship,when a relationship ends, either partner may apply for a division ofunadjusted pensionable earnings under the Canada Pension Plan. You musthave lived together for 12 consecutive months. It is not necessary for theperson applying for the division to have contributed directly to the plan to beentitled to a division of the unadjusted earnings of his or her spouse. Adivision of pension credits may mean more money to you when you retire or ifyou become disabled. It could mean benefits for your children if you die orbecome disabled. Information on credit splitting of CPP credits is available fromthe federal government at www.esdc.gc.ca/en/cpp/credit_splitting.page.

What about my spouse’s/partner’s provincial pension plan?If you were legally married, according to the Pension Benefits Act (PBA) inNew Brunswick, you may apply for a division of your spouse’s provincialpensions when you split up.

Under the PBA, common-law couples who have lived together continuouslyfor two years are also entitled to pension benefits. This includes thefollowing provincial pension plans: Teachers Pension Act, the Public ServiceSuperannuation Act, the Members Pension Act, the Members SuperannuationAct, and the Provincial Court Judges Act.

Note: If a legally married spouse and a common-law partner both apply forthe same benefits under the PBA, the spouse has priority unless statedotherwise in a domestic contract.

Resolving Legal Rights and Responsibilities After Separation

After a relationship ends, you should consider your options for dealing withyour family law matters. You and your partner can work out the details ofyour rights and responsibilities toward each other and your children andcreate a “separation agreement”. You may be able to do this by sittingdown together and coming to an agreement, or you may need the help of amediator or lawyers to help you resolve differences. (For more informationon Separation Agreements, see the section below).

Once you agree on how to handle property division, custody and access andsupport issues, you should each take the agreement to be reviewed byseparate lawyers. The agreement can then be filed with the court. Theterms of the agreement will be considered binding (legally enforceable) ifthe judge approves of them.

If you cannot agree on some or all family law matters, you must apply to thecourt and a judge decides. In such contested cases, both parties usually arerepresented by lawyers. The court looks at the documents filed by bothparties and hears verbal evidence, if any. The judge makes an order aboutcustody, access, support and/or division of property and debts.

Separation Agreements

Some separating couples are able to write up anagreement about some or all of these legalissues. This written agreement is called aseparation agreement. A separation agreementis a mutual understanding between spouses whoare separated. It is usually a written agreementthat both partners sign after gettingindependent legal advice (meaning each partner sees his/her own lawyer).It includes the couple’s arrangements for matters such as spousal support,division of property, custody and child support. Most separationagreements can be filed with the court for the purpose of enforcement ofsupport.

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Will a court always accept a separation agreement?

The court will usually accept a separation agreement unless it discovers that:

� One spouse was forced to sign the agreement;

� One spouse tried to defraud the other by making false statements orhiding assets;

� The agreement does not make appropriate provisions for child support;or

� The spouses did not consult separate lawyers.

Do I need a lawyer for a separation agreement?

You should see each see a different lawyer about the separation agreement.Seeing your own lawyer is called getting independent legal advice. Thesame lawyer should not advise two people with different interests. If youdo not receive independent legal advice, you may not be aware of all ofyour rights and your agreement may not stand up in court. Your lawyerwill explain how the agreement may affect you. If your lawyer advises younot to sign, that is not just a suggestion. It is a serious warning.

Be informed….

It is a good idea to learn more about family law issues and your options.Explore some or all of these options to decide how you should proceeddepending on your situation:

� Call PLEIS-NB’s bilingual, toll free Family Law Information Line at 1-888-236-2444 for general information about family law issues. Youshould also review PLEIS-NB’s many family law publications - see list onpage 10. You can call the toll-free number to order copies or go on ourwebsites at www.familylawnb.ca or www.legal-info-legale.nb.ca.

� Check whetherthere are any freelegal advice clinicsin your area thatmight offerinformation aboutyour legal situation.

Take a free parenting afterseparation course “For theSake of the Children”. It willhelp you learn about legalissues and the impact ofseparation on children. Toregister call 1-888-236-2444.

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� Use the services of a mediator to help resolve your family law issues. Inmediation, a third person, such as a lawyer or a social worker, helps youresolve conflicts and negotiate a “separation agreement”. They aretrained to help people. Most separation agreements can be filed with thecourt for the purpose of enforcement of support.

� If you wish, you can ask to have your separation agreement filed with thecourt as a consent order.

� Use a collaborative law process to settle your family law issues. This is aprocess where you and your spouseeach have a collaborative law lawyerand the four of you work as a team tounderstand each other’s needs andcome up with the best solution forboth of you and your children. Onceboth parties reach an agreement, thecollaborative lawyers can assist withthe process of filing the agreementwith the court. For more information,including a list of lawyers trained in

Collaborative Law, check out the Canadian Bar Association-NewBrunswick Branch’s website: http://www.nb-cba.org/Sections/Collaborative-Law-Lawyers.aspx?lang=EN

� Get legal advice from a lawyer no matter how you decide to settle yourfamily law matters. A family law lawyer may be able to help you resolvematters out of court. It is important to choose the right lawyer for yourlegal problem. The best references generally are other people who haveused that lawyer. You can also check out the Law Society website(www.lawsociety-barreau.nb.ca) which offers a list of lawyers licensedto practice in N.B. Look under “Lawyer Search” on the navigation bar atthe top of the webpage. You can see a lawyer’s status or search for alawyer by city. Or, look in the Yellow Pages of the telephone directory,under “Lawyers”. Lawyers and law firms in your community are listed inalphabetical order.

� If you cannot agree on the issues, consult with a lawyer and apply to thecourt. A judge will decide and issue a court order.

� If you cannot afford a lawyer, you may eligible for family legal aid forcertain family law matters. You will be assessed on financial criteria, andif you qualify a Family Solicitor would handle your case. You can checkthe Legal Aid website at: www.legalaid.nb.ca.

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Useful Family Law Resources

For copies of these publications, please check out PLEIS-NB’s websites -www.familylawnb.ca and www.legal-info-legale.nb.ca or email us to requesta copy at pleisnb@web.ca.

� Marital Property in New Brunswick (free)

� Parenting: Rights and Responsibilities of Young Parents (free)

� Custody & Access in New Brunswick (free)

� For the Sake of the Children (free): A free information program forparents living separately – 1-888-236-2444

� Family Support Orders Service (free series of booklets)

� Court-ordered Evaluations Support Program (C-OESP) (free)

� Living Common-Law (free) (Explains rights and responsibilities of common-law couples)

� Child & Spousal Support (free)

� Doing Your Own Divorce in New Brunswick ($10) A guide explaining theprocedures for applying for an uncontested divorce.

� How to Apply for Custody, Access & Support in New Brunswick ($10)A guide to the procedure for applying for custody, access and support.

� New Brunswick Child Support Variation Kit (free 1 copy): A kit forparents with an existing child support order, who wish to vary supportbecause of substantial change in circumstances.

� Financial Statement and Income Information (free): Explains incomeinformation and how to complete a Financial Statement (Form 72J).

Check out these helpful Justice Canada publications at www.justice.gc.ca:

� What Happens Next? Information for Kids About Separation and Divorce

� The Federal Child Support Guidelines: Step-by-Step

� Divorce Law: Questions and Answers